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TMI Blog2018 (5) TMI 2136X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered, the Assistant Registrar has any authority of law to cancel the registered sale deed under the provisions of the Registration Act, 1908 even if allegation of impersonation/fraud are made? (b). Whether the allegations of fraud are essentially, an allegation of fact which need examination of oral or documentary evidence and can be adjudicated on the basis of evidence to be led by the parties before competent civil court? (c). Whether the judgment in the case of Raj Kumari (supra) or the judgment in the case of Radhey Shyam Arora (supra) lays down the correct law?" On going through the Division Bench judgments in Raj Kumari (supra) and Radhey Shyam Arora (supra), we do not find any conflict in the conclusions arrived. In Raj Kumari (supra), a Division Bench while examining the issue that whether an administrative authority while acting upon the government order dated 13.08.2013 could have cancelled a registered sale deed by relying upon a Full Bench judgment of Andhra Pradesh High Court in Yanalla Malleswari Vs. Ananthalu Sayamma, AIR 2007 (AP) 57 held that "once incumbents who have proceeded to execute the sale deed, have no authority to execute sale deed then rightful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or by any other authority invoking administrative powers, if the registration is questioned on the count of impersonation/fraud? The question noticed above has been considered and dealt with threadbare by a Division Bench of this Court in Krishna Kumar Saxena and another Versus State of U.P. and 9 others, 2018 (127) ALR 466. In this case, the Assistant Inspector General (Registration/Stamp), Rampur by an order dated 18.10.2016 withdrew registration of a sale deed and annulled that on the count that the same was executed by fraud and misrepresentation. The Division Bench after examining all relevant provisions of the Act, 1908 and the law applicable held that in no case registration of sale deed could have been withdrawn and the sale deed could have been annulled by administrative fiat. The Division Bench also quashed the order dated 13.08.2013 conferring powers upon registering authority to withdraw registration of a registered deed and to annul that. The discussion made by the Division Bench and the findings arrived in the case of Krishna Kumar Saxena and another (supra) deserves to be quoted and that is as follows:- "In the light of the rival stand made by the parties and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh in Yanala Malleshwari (Supra) was explained by the Supreme Court in Satya Pal Anand versus State of M.P and others 2016(10) SCC 761 holding that the Andhra Pradesh High Court was only called upon to consider whether a person can nullify the sale by executing and registering a cancellation deed and whether the Registering Officer was bound to refuse registration when a cancellation deed was presented. The Supreme Court held that in view of the provisions of Rule 26(k)(i) of the Andhra Pradesh Registration Rules, which was expressly provided in the Rules applicable to that State, the registration of a document be annulled and labelled as fraudulent or nullity in law. No such Rules have been framed under Section 69 of the Registration Act in so far as the State of U.P is concerned. In the absence of any express provision, the registration of a document cannot be withdrawn nor a sale deed could be annulled by an executive fiat on the basis of a Government Order dated 13.8.2013. Unless and until there is an express provision in the Act or in the Rules, no Government Order could be issued giving power to a Registering Authority to annul a document on the administrative side. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment of India by virtue of any treaty or any agreement. The proviso engrafted on Clause(1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also. Neither of these articles contains any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. The language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. Where a particular subject is regulated by a legislative enactment, the field is said to be covered by such statute. In such matters and on such subjects the executive powers is circumscribed. The executive exercising powers under Article 162 cannot issue orders which contravene provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The aforesaid principle is also in consonance with Section 31 of the Specific Relief Act which states that it was only the Court which has the power to cancel an instrument where it is alleged that the written instrument is void or violable. In Shri Anil versus State of U.P and others in Writ No.24128 of 2016 decided on 11.5.2017, a Division Bench of this Court held that the Government Order dated 3.8.2013 could not be considered in reference to procedure provided under section 34 & 35 of the Act and that the said Government Order cannot confer a power upon the Registering Authority to cancel a deed which has already been registered. We are of the opinion that Sections 34 & 35 only contemplates an enquiry before registration of a document. The Act does not contemplate any enquiry after a document is registered. The Government Order dated 13.8.2013 cannot be invoked for withdrawal of a registration and for annulling a document which had already been registered under the Registration Act. The Government Order dated 13.8.2013 confers unfettered and arbitrary powers upon the Registering Authority in violation of the express provisions of the Registration Act and such Government Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly, an inquiry was conducted wherein it was found that on 27.08.2014, Sri Mahesh Chandra had no right to execute the sale deed pertaining to the property being already sold under a registered sale deed dated 07.08.2014 to respondent no. 4 (Smt. Sheela Rai). It is pertinent to note that the petitioner was aware of sale deed dated 07.08.2014 executed by Sri Mahesh Chandra in favour of respondent no. 4 (Smt. Sheela Rai) as she preferred a civil suit bearing No. 39 of 2015 before a competent Civil Court to set aside the sale deed aforesaid. The filing of the suit with a prayer to cancel the sale deed dated 07.08.2014 is sufficient enough to arrive at the conclusion that on 27.08.2014, Sri Mahesh Chandra had no right to sell the property in question and to get the sale deed registered. Worthwhile to note that the present petitioner sought cancellation of the sale deed on the count that an earnest money to a tune of Rs. 9 lacs was taken by Sri Mahesh Chandra in the year 2013 and an agreement to sell was also drawn on the same date, as such, the sale deed dated 27.08.2014 is a consequence of the agreement, hence, is to be treated as a valid sale. We do not want to express any opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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